The Unspectacular Future of the IAEA Additional Protocol

One topic of discussion at the upcoming five-year treaty Review Conference meeting in Vienna will be how best to universalize the Additional Protocol for safeguards among the 185 non-nuclear-weapon states Party to the Treaty.

Next week, the parties to the Nuclear Non-Proliferation Treaty (NPT) will meet in Vienna to begin preparations for a five-year treaty Review Conference in 2015. One topic of discussion will be how best to universalize the Additional Protocol for safeguards among the 185 non-nuclear-weapon states Party to the Treaty.

It has been fifteen years since the Additional Protocol was approved by the International Atomic Energy Agency (IAEA) to rectify serious deficits in IAEA inspections and verification by improving the IAEA’s ability to detect undeclared nuclear material and activities. But NPT parties still have not reached a consensus that the protocol should be an essential component of their long-standing Comprehensive Safeguards Agreements. In 2015, they will likely remain divided.

The reason is that getting countries nowadays to agree on new common norms and standards governing their nuclear behavior is tough. That lesson was underscored by the two Nuclear Security Summits held in 2010 and this March, as well as the Ministerial Conference on Nuclear Safety held last June after the Fukushima accident. At these events, governments showed that they are not willing to give the IAEA greater blanket authority to peek inside their civilian nuclear energy programs in matters of nuclear security and nuclear safety. Some states are similarly averse to strengthening the IAEA’s authority to enhance nonproliferation.

But there is a way forward on the Additional Protocol. The IAEA and committed member states should provide resources and support to enable the 66 countries still without a protocol—mostly developing nations with few or no declared nuclear activities—to conclude and implement the measure. Efforts should also continue to engage the half-dozen states with nuclear assets that oppose the Additional Protocol, recognizing however that they may not sign on the dotted line without a change in leadership.

As in nuclear safety and security, in nonproliferation only an incremental approach will be feasible for the foreseeable future. After all but a tiny number of states have implemented the Additional Protocol, it will then be possible to subject the remaining holdouts to diplomatic pressure to encourage their participation.

Evolving Threat Assessment

The IAEA carries out routine safeguards inspections in NPT states under a Model Safeguards Agreement approved back in 1971. When in the 1990s the IAEA belatedly learned that Iraq had spent billions of dollars on a clandestine nuclear weapons program, and that Romania and North Korea had secretly separated plutonium, it rightly concluded that the routine inspections permitted under Comprehensive Safeguards Agreements weren’t enough to expose determined efforts by states to deceive IAEA inspectors.

In each of these states, scientists and engineers breached nonproliferation rules right under the noses of IAEA inspectors who were busy tracking declared activities. The IAEA’s safeguards agreement with Iraq allowed it to inspect a limited number of sites at the Tuwaitha nuclear research center. But after the United States defeated Iraq in 1991 in the first Gulf War, the IAEA discovered that in buildings at Tuwaitha not covered by the agreement and in other locations where inspectors were not permitted, Iraq secretly enriched uranium using three different technologies and had also carried out reprocessing experiments.

In North Korea, the IAEA’s safeguards agreement permitted inspectors limited access to the Yongbyon nuclear research center. When IAEA inspectors were not there, Yongbyon personnel separated plutonium from spent reactor fuel and then disposed of the radioactive waste at a hidden underground site. Undeclared reprocessing was carried out under the Ceauşescu regime in Romania as well, at a laboratory subject to IAEA safeguards, also when inspectors were absent.

In response to these transgressions, in 1997 the IAEA’s member states approved an Additional Protocol for safeguards to supplement the 1971 Model Safeguards Agreement by boosting the IAEA’s capabilities to detect hidden nuclear programs. If a Comprehensive Safeguards Agreement was intended to verify the accuracy of a state’s declared nuclear activities, the Additional Protocol was designed to verify the completeness of its declaration.

It contains two principle features: First is an “expanded declaration” provided to the IAEA by the state, containing information on activities that might be relevant to the development of nuclear arms but not subject to reporting requirements under the state’s Comprehensive Safeguards Agreement. The second feature is broader IAEA “complementary access” to undeclared locations in a state “to assure the absence of undeclared nuclear material and activities.” On the basis of information obtained in this way, the IAEA can draw a “broader conclusion” about a state’s nuclear activities than would be possible under the Comprehensive Safeguards Agreement alone, and formally express confidence that all nuclear activities in a state subject to a Comprehensive Safeguards Agreement are dedicated to peaceful purposes.

Since 1997, the Additional Protocol’s contribution to nonproliferation has been publicly recognized by annual IAEA General Conferences, by NPT Review Conferences, and by the United Nations General Assembly. Member states have thus acknowledged that nuclear threats have evolved since the IAEA began carrying out safeguards inspections. A half century ago, most of the world’s nuclear knowledge was in the hands of a few advanced countries. Since then, many more states have obtained nuclear technology by importing it or developing it themselves. Black market procurement networks have also emerged to support clandestine nuclear programs that in some countries were established after sensitive know-how was stolen. This encourages countries without nuclear weapons capabilities to hedge their bets because they suspect that their neighbors will secretly develop nuclear arms. Since the Additional Protocol was approved, the IAEA has found that in the past, Egypt, Iran, Libya, South Korea, and Syria failed to declare all their nuclear activities as required by their NPT safeguards agreements.

The good news is that most states have now at least signed an Additional Protocol. Thus far, 115 of 181 countries with IAEA safeguards agreements have concluded an Additional Protocol, and a further 23 have signed one but have not yet brought it into effect. Most states with negligible or no nuclear activities have instead concluded a so-called Small Quantities Protocol which exempts them from IAEA inspections.

A considerable number of these 115 states also now believe that the Additional Protocol, instead of being voluntary, should become mandatory, but many of the NPT’s member states do not agree. Most of the countries that object are developing nations with limited nuclear activities. An outspoken number say they will not accept any new nonproliferation burdens, especially since the United States and other nuclear weapon states will not give up their nuclear arms. And in their view, they are not sufficiently benefitting from the NPT’s “grand bargain,” under which they should get access to the developed world’s nuclear technology in exchange for their willingness to forego nuclear arms.

Only a small number of states with significant nuclear activities have not concluded an Additional Protocol, including Argentina, Brazil, Egypt, Iran, Syria, and Venezuela. The IAEA and some member states have tried at length to get these countries to conclude an Additional Protocol because these states have reactors, nuclear materials, and research and development centers with nuclear-material-processing infrastructure. Their efforts have failed because of political objections made by the states’ leaders.

2010 NPT Action Plan

NPT states have debated the question of whether the Additional Protocol should be a requirement during NPT Review Conferences that take place every five years. Still, in 2015 there will likely be no consensus that the Additional Protocol should be a requirement for NPT states.

In 2000, states told the Netherlands and Sweden, which proposed the requirement, that the step was premature. At the 2010 NPT Review Conference, many states remained opposed, and the conference’s final document reiterated a 2009 IAEA General Conference resolution that referred to “measures contained in both” the 1971 Model Safeguards Agreement and the Additional Protocol as together “represent[ing] the enhanced verification standard.”

But the IAEA has prioritized progress in universalizing the Additional Protocol and achieving the goal of getting all states with Comprehensive Safeguards Agreements to conclude an Additional Protocol with the IAEA. An Action Plan, agreed to by consensus on the final day of the 2010 Review Conference, “encourage[d] all states parties which have not yet done so to conclude and bring into force additional protocols as soon as possible.” It also “encourage[d] the IAEA to further facilitate and assist states parties in the conclusion and entry into force of . . . additional protocols.” The IAEA also wants states with Small Quantities Protocols to update those agreements to permit the IAEA to carry out safeguards inspections should it have reason to believe that there are undeclared nuclear activities taking place.

Next week the cycle for the 2015 NPT Review Conference begins. From April 30 through May 11, NPT parties will convene in Vienna for the first of three annual preparatory meetings. They will review progress in implementing the 2010 Action Plan, including progress on the Additional Protocol. The IAEA will spell out that its effort to universalize the Additional Protocol is now squarely focused on the group of states that have few nuclear materials and activities—not the more vocal and more developed ones which, in some cases, have full-blown nuclear fuel cycle capabilities. Currently, the IAEA’s outreach activities are focused on the Asia-Pacific and Caribbean regions, where most countries have Comprehensive Safeguards Agreements but many are not members of the IAEA.

The IAEA’s rationale for doing this is sound: There are no grounds to expect that Argentina, Brazil, Egypt, and Syria will agree to more IAEA access to their nuclear programs. Argentina may not conclude an Additional Protocol without Brazil taking that step in tandem. Brazil—most recently during a bilateral discussion with the United States—is digging in its heels over disarmament and global nuclear equity issues. Egypt is described by some diplomats as opposed in principle to making any additional nuclear verification commitments; sometimes Egyptians, and Syrians, say that they won’t accept the Additional Protocol without Israel’s nuclear disarmament. In 2003, Iran, cited by the IAEA for not having declared nuclear activities for eighteen years, agreed to apply the Additional Protocol without making a legal commitment to adhere to the regulations, then three years later suspended implementation of it. Syria is in turmoil.

Since 1997, some of these states, joined by a few others such as Cuba and Venezuela, have asserted that they speak for developing countries and the Non-Aligned Movement in championing a balance of NPT parties’ obligations and rights. That is, without nuclear disarmament by nuclear weapon powers and without receiving nuclear technology from the developed world, they will not commit to more transparency in their own nuclear programs. During the 2010 conference, a few developing countries and Non-Aligned Movement members—Chile, Singapore, and the United Arab Emirates—broke ranks with the rest on this issue. And outside the multilateral political theater, since 1997 many developing countries—including 75 Non-Aligned Movement members—have, one by one, concluded an Additional Protocol with the IAEA. Most of these agreements have entered into force.

Since the 2010 NPT Review Conference, fourteen more states—Albania, Andorra, Bahrain, Republic of Congo, Costa Rica, Gambia, Kyrgyzstan, Mexico, Montenegro, Morocco, Mozambique, Namibia, UAE, and Swaziland—have concluded an Additional Protocol, with nine of them members of the Non-Aligned Movement. Most of these states have limited nuclear activities, but a few are noteworthy: Mexico has power reactors and has objected in multinational fora to additional safeguards burdens, and Namibia produces about 10 percent of the world’s uranium. Progress is being made, however slowly.

Safeguards Compliance and the Additional Protocol

In June 2011, the 46 members of the Nuclear Suppliers Group, the most important multilateral nuclear-trade rule-making body, amended their guidelines for exports of sensitive enrichment and reprocessing items to mandate members to require an Additional Protocol in recipient states. In light of objections raised by a few countries—particularly Brazil—the new guidelines afford access to sensitive items if a regional safeguards system is in place, such as the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials (ABACC).

Before these new guidelines on sensitive trade were negotiated, the Nuclear Suppliers Group had planned to consider requiring an Additional Protocol as a condition of supply for all nuclear trade. But officials from objecting countries argued that, were the Nuclear Suppliers Group—and beyond that, the NPT Review Conference—to require all states to have an Additional Protocol, resentful governments would not implement it, damaging the overall credibility of the Additional Protocol as a verification instrument.

This argument, however, is not valid, because the credibility of the Additional Protocol rests on the same legal foundation as the Comprehensive Safeguards Agreements. Should the IAEA conclude that a state is not complying with its Comprehensive Safeguards Agreement, it can report that conclusion to its Board of Governors. The same holds if the IAEA concludes that a state is not in compliance with its obligations under an Additional Protocol.

During the last decade some misunderstandings arose about the scope of the Additional Protocol. It does not give the IAEA carte blanche to conduct “anytime, anywhere” inspections in a country. Nor does it exclude the IAEA from access to military or other defense-related locations. In fact, in some cases, the IAEA has requested, and was afforded, access to military sites, providing it assurance that firewalls are in place between nuclear-related installations and adjacent defense-related locations.

In the course of ongoing safeguards activities, the IAEA may request access to a range of locations which would, in effect, put a state’s willingness to cooperate to the test. Separately, the IAEA may receive intelligence about the state’s nuclear activities—provided to the IAEA by other member states under Article VIII of the IAEA statute—which may prompt the IAEA to attempt to obtain radiation or environmental monitoring data from the state in question. If the state refuses access—or otherwise does not provide information in lieu of providing access—the IAEA may report that development to the Board of Governors as noncompliance.

There is every reason to believe that the IAEA would pursue states that do not cooperate in implementing the Additional Protocol. There is no indication that it would consider such a lack of cooperation less serious than failure to comply with the terms of a Comprehensive Safeguards Agreement. And there is no question that the IAEA would have the right to expect compliance. The 2010 NPT Review Conference, for example, explicitly underscored that, once a state concludes and brings into force an Additional Protocol, implementing it is a legal requirement.

In fact, the record so far suggests that the IAEA would take action. Beginning in 1994, the IAEA obtained information from member states that South Korea had a research program featuring the atomic vapor laser isotope separation process, had subsequently enriched some uranium using this technique, and had also performed undeclared uranium conversion experiments including some related to the production of uranium metal. In 1997 the IAEA took environmental samples in one location which revealed plutonium particles indicating that South Korea had also separated some plutonium. For nearly a decade, however, according to verification experts, South Korea denied that it had carried out any undeclared nuclear activities.

Beginning in February 2004, the IAEA and South Korea began implementing the Additional Protocol. Six months later, the IAEA reported to the Board of Governors that South Korea had failed to declare plutonium separation and uranium-enrichment activities.

Anticipating that the IAEA would rigorously implement the Additional Protocol once it was concluded, other states that in the past had carried out nuclear activities not previously reported under their Comprehensive Safeguards Agreement, such as Canada and Sweden, disclosed legacy activities and worked closely with the IAEA to account for them.

Transparency Visits versus Legal Obligations

In lieu of the legal authority afforded by the Additional Protocol, the IAEA has on a few occasions relied on informal “transparency visits” to persuade states to provide information and access to locations not specifically permitted under their Comprehensive Safeguards Agreements. This approach in key instances failed. For instance, before Seoul implemented its Additional Protocol, the IAEA informally requested but was denied access to the laser equipment in South Korea that was later confirmed to have been used for uranium enrichment.

Beginning in 1992, when a Comprehensive Safeguards Agreement entered into force in North Korea, the IAEA relied on “transparency” exercises to engage Pyongyang over concerns that it was reprocessing spent fuel in the absence of IAEA inspectors. After the United States provided the IAEA aerial photo reconnaissance showing that North Korea had disguised this activity, the IAEA requested a special inspection under its safeguards agreement with Pyongyang. North Korea refused to grant access, and the IAEA then reported Pyongyang to the Board of Governors as being in noncompliance with its safeguards obligations.

Also during the 1990s, Iran permitted the IAEA to undertake “transparency visits” to a select number of sites that information from member states and open sources suggested might host undeclared nuclear activities. These visits, arranged by Iran in advance, failed to reveal any safeguards violations. In 2003, Tehran agreed to voluntarily implement the Additional Protocol, but it did not commit to any legal obligation, and the IAEA therefore undertook informal “transparency visits” to Iranian sites. Those visits were less effective than legally binding Additional Protocol “complementary access” procedures because their success depended on voluntary cooperation by Iran.

The IAEA’s experience in pursuing allegations of undeclared nuclear activities in North Korea, South Korea, and Iran suggests that informal “transparency” exercises are not effective because states have no legal obligations to comply with IAEA requests for access and information.

The Self-Interest of States

Yet, if the legally binding Additional Protocol imposes more duties on states to provide information and access to the IAEA, why should states agree? Ultimately, they do so out of consideration of their national self-interest. So far, 115 states “want assurance that their neighbors’ nuclear programs are transparent and not clandestinely organized to develop nuclear weapons,” according to John Carlson, Australia’s former director general for safeguards. These states, Carlson said, also want to assure others that they themselves have no secret nuclear agendas.

This calculus may ultimately prevail even in South America, where both Argentina and Brazil axiomatically assert that neither country needs the Additional Protocol because ABACC will assure that both nuclear programs are peaceful and because both states are members of a pact ensuring that the South American continent will remain free of nuclear arms. Away from the public eye, Argentine officials have expressed to their foreign counterparts that they are troubled by Brazil’s resistance to the Additional Protocol, because ABACC, unlike the protocol, does not provide for short-notice inspections. While Argentina is generally confident that Brazil’s democratic aspirations would deter Brazil from reaching for nuclear arms, officials suggest that the Additional Protocol would provide greater assurances that Brazil’s nuclear program is transparent.

Should the IAEA, the United States, and others therefore squeeze Argentina, Brazil, Egypt, Syria, and Venezuela to conclude an Additional Protocol? Because these states have significant nuclear activities, efforts to persuade them should continue, but bilateral bullying will be counterproductive. Leaders in these countries are heavily invested in the political rhetoric of the Non-Aligned Movement on this issue. These states may not agree to the Additional Protocol until there is a change in political leadership and until long-serving officials who “own” this issue depart. Opposition to the Additional Protocol could be dropped by new governments in Egypt or Syria. In Brazil, President Dilma Rousseff may have a different view than did her predecessor, Luiz Inácio Lula da Silva.

It is currently inconceivable that established nuclear suppliers would in the future provide nuclear items to Iran or Syria without an Additional Protocol in those countries. The United States and some other advanced countries in effect require an Additional Protocol as a condition for concluding new nuclear trade agreements, but for now, Australia stands alone in explicitly requiring an Additional Protocol as a condition for any trade in nuclear equipment and materials. Over time, and especially as more and more states join the ranks of those with an Additional Protocol, it may be possible to bring pressure to bear on the few holdouts, especially those with significant nuclear activities that currently refuse the measure.

In the meantime, the IAEA’s incremental approach is the correct one. The number of states with an Additional Protocol has gradually but steadily increased since 1997 and more states can be encouraged to join them. Focused outreach by the IAEA and member states will advance this development. Japan, the UK, and the United States have set up programs to assist states in making expanded declarations and to involve their nuclear regulators in the process. In some countries targeted by the IAEA beginning in 2010, the IAEA has found that governments were not opposed to the Additional Protocol but had little information about it.

Argentine officials have suggested to their U.S. counterparts that the biggest obstacle to the Additional Protocol for Buenos Aires may not be politics but the amount of work needed to comply with the expanded declaration. For a country like Argentina, with a complex nuclear fuel cycle, the requirements are considerable. Successful implementation in other such states took five years or more. For the 60-plus NPT states with few nuclear activities or materials and without an Additional Protocol, the workload will be far less. However, many of these countries will need help because they have few resources to spare.

Beginning at next week’s NPT review preparatory meeting, and over the course of the next three years, the IAEA and committed member states should systematically address and resolve the financial and infrastructural problems standing in the way of the conclusion of an Additional Protocol with each of the remaining states. And they should do so by designing a well-defined road map to secure blanket participation by 2020.

About the Nuclear Policy Program

The Carnegie Nuclear Policy Program is an internationally acclaimed source of expertise and policy thinking on nuclear industry, nonproliferation, security, and disarmament. Its multinational staff stays at the forefront of nuclear policy issues in the United States, Russia, China, Northeast Asia, South Asia, and the Middle East.

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